Critics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).

Tuesday, September 24, 2013

The Toilet Incident (Indonesia)

Unfortunately, another day, another corruption scandal in Indonesia. According to The Jakarta Post, this time, Supreme Court justice candidate Sudrajad Dimyati was observed handing lawmaker Bachruddin Nashori of the National Awakening Party (PKB) an envelope while in a bathroom.

These instances of corruption are sad and frustrating for rule of law reformers in the country. However, they also raise an interesting theoretical question. Why do judges and lawmakers engage in cash transactions in order to effectuate political agreements? Given the risks in being exposed, why wouldn't lawmakers make other compromises with judicial candidates?

For example, in the U.S., there is often an implicit agreement that judges appointed to federal court will rule in politically acceptable ways (i.e., Democrats rule in favor of liberal causes, Republicans for conservative causes). This allows lawmakers to claim political credit for policy victories and minimizes the risk of scandal (after all, Democratic voters want judges to support their causes, and vice versa for Republican voters).

I suspect part of the reason we don't see such "policy-based corruption" in judicial appointments is that the Indonesian Supreme Court typically does not adjudicate politically salient issues. The court hears thousands of appeals each year, many of which deal with minor traffic issues or other criminal infractions. The justices have limited discretion over their docket (although my understanding is that some reforms are being proposed to exclude cases below a certain threshold). As such, we see little political mobilization around the content of Supreme Court decisions.

The value of the decisions is relatively high for the litigants involved, but relatively low for other stakeholders. If I'm right, this means that if lawmakers are going to extract value out of judicial nominations, it must be at the nomination stage and not in future decisions. By contrast, I suspect Constitutional Court (Mahkamah Konstitusi) cases are more likely to affect policy and act as a veto on lawmakers' policies. As such, in MK fit-and-proper tests, we do see MPs expressing more concern about how justices will rule once they reach the bench. To my knowledge, there have been no allegations of cash transactions in the appointment of MK justices.

It would be interesting to compare media coverage of Supreme Court decisions with those of the Constitutional Court to see if and how often they do become politically salient. Perhaps a future paper.

UPDATE: The Jakarta Postis reporting another instance of alleged corruption during the process of nominating a judge. This time, Democrat Party Dasrul Djabar is alleged to have attempted to influence the Judicial Commission in return for an endorsement of a particular judicial candidate.

No comments:

Post a Comment

About Dom

Dominic Nardi is a third year Ph.D. student at the University of Michigan in the Political Science Department. He is interested in judicial politics in developing countries, particularly Myanmar, the Philippines, and Indonesia. His dissertation research focuses on how non-state actors influence judicial behavior. In addition to his research at the U of M, he has also worked for legal organizations in Indonesia and the Philippines and has published articles about judicial politics in Southeast Asia both in law reviews and in popular media.